Thursday, May 29, 2014

Do Women Enjoy Equal Rights In J&K?

The Reference to the Full Bench of Jammu and Kashmir High Court is: "Whether the daughter of a permanent resident of the state of Jammu & Kashmir marrying a Non Permanent resident loses her status as a permanent resident of the State of Jammu & Kashmir, to hold , inherit and acquire immovable property in the state?"

Answer in Para 83: In view of the majority opinion, we hold that a daughter of a permanent resident marrying a non permanent resident will not lose the status of permanent resident of the state of Jammu and Kashmir.

Srinagar, June 16: Notwithstanding the stand of ruling National Conference on the issue, Jammu & Kashmir Government has said it has no plans to re-introduce the Permanent Resident Women Disqualification Bill in near future.

The Bill pertains to disqualification of a woman as the State Subject after marrying a non-State Subject.

“It is informed as of now there is not any proposal to re-introduce the Permanent Resident Women Disqualification Bill, in pursuance to the judgment passed by Hon’ble High Court,” the Public Information Officer of Revenue Department has stated in reply to an RTI application by Irfan Hafiz Lone, vice-president of Baramulla Bar Association.

The Revenue Department has however pushed the ball on the controversial issue in the court of Law Department saying that further steps/measures will be taken only after getting opinion of Law Department.

“We will give our opinion on the matter as sought by the Revenue Department,” Law Minister Ali Muhammad Sagar told Greater Kashmir.

Senior leader of Peoples Democratic Party, Muzaffar Hussain Baig, said the Government reply has exposed the ‘double standards’ of NC.

“We put coalition in jeopardy in 2004 to bring the Bill, but they don’t have the guts to take any such step,” he said.

Senior leader of National Conference and member Parliament from south Kashmir, Dr. Mehboob Beg, however, said that party is committed to bring the Bill.

“The Bill is concerned with the identity and special position of Jammu & Kashmir and any negligence towards this issue would have serious implication for the State,” Beg said, adding that in many parts of the country, women lose domicile certificate on marrying with people from other nationalities.

The controversy over the issue of a State Subject woman marrying a non-State Subject dates back to 2002. In October that year, the Full Bench of the High Court in a case, State of Jammu and Kashmir vs Dr Sushila Sawhney, said that daughter of a permanent resident of the State of Jammu and Kashmir will not lose status as permanent resident of the State on marriage with a person who is not permanent resident of the State of Jammu and Kashmir.

However, Justice Muzaffar Jan had struck a discord note. He said, “I agree with the view of Justice V.K Jhanji (the then Chief Justice) only to the extent that a female non-permanent resident of the State on her marriage to the permanent resident of the State will have right to inherit the property in accordance with the personal law of the deceased (in the case). However, I don’t agree to ultimate conclusion that a female will not lose the status as a permanent resident on her marriage with a non-permanent resident of the State.”

Later, the state Government went for appeal in the Supreme Court against the judgment. However, the PDP Government in 2004 withdrew the appeal and moved a Bill in the Legislative Assembly seeking disqualification of a woman marrying a non-State Subject.

Although the Bill was passed in the Legislative Assembly but it hit a roadblock in Legislative Council with the then Chairman Abdul Rashid Dar adjourning the House sine die without putting the Bill to vote. National Conference then expelled Dar for ‘sabotaging’ passage of the Bill.

The Bill was again brought in the Upper House by PDP in March 2010, again raising the tempers. The NC-led Government didn’t oppose, knowing well that Legislative Council will drop it. After about 15 days, the Chairman of the Legislative Council said it was a Constitutional Bill and should be introduced in the Assembly. He then dropped the Bill.

Coming after 25 years, a High Court ruling grants Kashmiri women marrying outsiders the rights to work, education, inheritance, even adoption

The Jammu and Kashmir High Court has pronounced a historic verdict in favour of the women of the state. The court ruled -- after 25 years of argument -- that Kashmiri women marrying outsiders did not stand to lose her right to work, education, inheritance and even adoption.

A full bench of the court, hearing a bunch of petitions filed over the years, held by a majority decision that a woman by marriage to an outsider `will not lose her state subject rights'.

The impugned law governing permanent resident status in the state provided that a female ceased to be a subject of the state if she married a non-permanent resident of Jammu and Kashmir. She would then lose her right to get or continue in a government job, own land and property, pursue higher education, contest or vote in municipal and state elections. However, wives of J&K men automatically became state subjects.

In court, the counsel for women petitioners argued that the existing laws violated a woman's right to equality and sought to deny natural consequences of birth to a female in retaining her permanent residentship of the state in case she marries an outsider. At present, women in the state get their Permanent Residentship Certificate (PRC) with a marking `valid only till marriage'.

The legal battle started in 1978 when Amarjeet Kaur of Chogal village in Kupwara district sought to acquire her share of property left behind to three siblings by their father. Since Amarjeet and her sister were married in Punjab to non-residents, their brother Harjeet Singh claimed that his sisters were no longer residents and therefore could not get possession of the property.

Amarjeet won in the trial court, from where the case came to the High Court in appeal. K N Bhat, Amarjeet's advocate, called the ruling an “historic verdict in favour of women's rights”.

After Amarjeet other affected women joined in, including Rubina Nassarullah, granddaughter of Kashmir's ex-chief minister Bakshi Ghulam Mohammad (and daughter-in-law of former Punjab governor Surinder Nath). She challenged the law after being barred from pursuing her post-graduation in medicine when she married an outsider.

Women's groups across the country that empathised with the cause were prevented from taking up the issue as it was sub-judice.

Life for Tsering Angmo Shano was full of promises. This small town girl from tribal region of Leh (Ladakh) was quite popular in the area and was involved in all major social and political activities. And then she fell in love with Major Didhwal who hailed from Utter Pradesh. Life was a fairy tale come true. Everything was so good until their relationship turned sour and Angmo had to return to her native Ladakh- with her three young children after getting a divorce from her husband.

Today Angmo, the station director of All India Radio, Leh who had inspired an entire generation of Ladakhi women, but seemed to have lost her own battle for the restoration of her basic right of citizenship, has every reason to be happy as in a landmark judgment of far-reaching public importance concerning women-folk of Jammu and Kashmir, the Full Bench of the State High Court, with a majority view, recently held that a daughter of a permanent resident of J&K, on marrying a non-permanent resident, would not loose the status of permanent residence of the state.. Though its too late for her, but she is relieved as she believes this landmark judgment would help hundreds and thousands of girls from Jammu and Kashmir.

An archaic law sanctified by the Jammu and Kashmir Constitution called as “State Subject Law” which deprived a woman citizen of the state of her basic citizenship rights in case she married a non-state subject, which came Angmo’s way, and was challenged by many women of the state, has finally been scrapped.

Angmo is one among the hundreds of women of this strategically important state who had been deprived of the basic right of citizenship by denying them the mandatory State Subject Certificate (SSC).Women who married a non state subject were barred from owing property or seeking admission to professional courses and employment.

The State Subject certificate deprived a women citizen of the undivided Jammu and Kashmir state, of her basic citizenship rights in case she married a non-state subject. Most of the women have suffered due to this draconian law.

Some had to quite the jobs, some had to drop the idea of serving in the parental state, some were awaiting justice for years until last month when the full bench of the state High Court where this case was pending for the past 14 years, ultimately delivered a landmark judgment saying "a daughter of a permanent resident, marrying a non-permanent resident, will not loose the status of a permanent resident of the state of Jammu and Kashmir".

The importance of this vital issue can well be judged from the fact that this judgment itself is based on 94 pages.

By this landmark judgment, the fate of 12 petitions pending in the Court, was also decided, wherein the State Subject/ Government jobs of married women of the State, have been treated to be canceled in view of their getting married with a person not belonging to the State of J&K.

The law was first challenged in the Jammu and Kashmir High Court by Dr Rubina Malhotra, grand-daughter of the former Prime Minister of Jammu and Kashmir Bakshi Ghulam Mohammed and daughter-in-law of former Punjab Governor Surinder Nath Malhotra(who died in an air crash). Rubina took up the cudgels on behalf of Kashmiri women when she was debarred from joining post-graduation in medicine on the grounds that she had married an “outsider”.

She moved heaven and earth in the early 80’s for this but all her efforts failed. Her fault was that she too, like Angmo Shano, had married Ranjeet Malhotra, a non-state subject. Convinced that the rulers in Srinagar will not scrap anti-women State-Subject laws on their own, Rubina ultimately challenged their constitutional validity in the J&K High Court.

Amarjeet Kaur of Baramullah in Kashmir had also filed a similar case when her relatives tried to deprive her of ancestral property since she had married a Punjabi. Her petition, like several other similar cases, including that of Rubina Malhotra , remained pending in the high court for over 14 years.

However, after a long wait, the women of the state are quite happy,as the gender-discrimination has been removed. However the separatist leader Shabir Shah and Kashmir Bar Association which is not happy with the judgement, are planning to challenge it in the court.

Dr Girija Dhar ,chairperson, State Commission for Women (SCW) feels that this was a long awaited historical judgment which has removed disparity and discrimination to a great extent. Infact, the Commission had made recommendations in this regard many times and had also tried to bring several women pressure groups on a single platform.

Even on International Women's day on 8 March this year, SCW submitted a memorandum to the then chief minister Dr Farooq Abdullah when the women of the state had formed a human chain to assert their rights. ''It is good that the disparity has finally been removed.

Paradoxically it was not only bias between two genders but with in the gender itself. A woman who comes from outside, is entitled to all the benefits after being married to a permanent resident but the one who has been born and brought up here in J&K , used to lose her rights.

My perception is that the same law should be there for all the citizens and this judgment has restored the parity,'' adds Dr Dhar.

Dr Nirmal Kamal, professor in Economics department of Jammu University and noted social activist, who champions the cause of their empowerment and had highlighted the issue many times feels elated that the daughters of the state have ultimately got justice.

She feels that it was quite humiliating that women of the state were bound to renew their state-subject certificate as testimony to their being married to a state subject only. The “Permanent Resident Certificate” (PRC) of a woman citizen was valid only till marriage- after that she needed to acquire a fresh certificate.

Each resident of J&K is supposed to possess the PRC, a mandatory document for acquiring property or getting jobs in the government.

“I want to ask the people like Shabir Shah or the Kashmir Bar Association who have been opposing the judgment that why there was no such bindings on the male state subject?” Argues Professor Kamal. “Dr Abdullah has married a British national, his son Omar has a Sikh wife from Punjab, Dr Karan Singh’s wife Yasho Raje Lakshmi is from Nepal, so are his two daughters in laws.

Vikramaditya is married to Madhao Rao Scindia’s daughter and younger Ajatshatru has married a Delhi girl. All of them have acquired state-subjects automatically as their husbands are state subjects,” She further adds that “Valid Till Marriage” was a derogatory inscription on the state subject certificate.

The recent landmark 94-page judgment which says that the concept of domicile has nothing to do with the concept of citizenship and the concept of state subject has favoured daughters of Kashmir fully stating : “Domicile has something to do with the residents but residents and citizenship are not synonymous.

State subject status is nearer the concept of citizenship and one can loose this status in the same manner as in the case of citizenship.” It further reads that wife or widow so long as she resides in the state and does not leave the state for a permanent residence outside the state would continue to enjoy the status of state subject.

“The daughter of a permanent resident of the state of Jammu and Kashmir will not loose status as a permanent resident of the state of Jammu and Kashmir on her marriage with a person who is not a permanent resident of the state of Jammu and Kashmir”, the full bench. With this, the fate of 12 petitions wherein the state subject/Govt. jobs of married woman of a state subject have been treated to be canceled in view of their getting married outside the state of J&K.

Seema Shekhar Khajuria, leading advocate of J&K High Court and a member of both State Social Welfare Board and Consultative Committee of State Commission for Women describes the judgment as a gigantic step undoing gender bias.

'Though there was no law or provision in J&K constitution or anywhere depriving a permanent resident of his/her this status after marriage. But over the years such position had emerged that the daughter of the soil was stripped of all her rights. She could not vote, contest, acquire family property, get government job, retain government job or seek admission in educational institutions once she married to a person from outside the state.

It was virtually like a civil death for her. Ironically as per regulations a male permanent resident, even if he immigrates to a foreign territory, would be considered as a permanent resident as per part-I of notification June 27, 1932 and his descendants born abroad will be considered state subjects for two generations.

Here lies the discrimination which has finally been undone with this judgment wherein the rights of female descendants of a permanent resident of the state have been kept intact. And now, the daughters of the soil marrying outside the state will not lose their status of permanent resident,'' she states adding the judgment will certainly have wide repercussions as far as women empowerment is concerned.

Echoing the similar sentiments a renowned educationist and social worker Prof Rita Jitendra asserts that finally the ice has been broken with the restoration of a separate individual status to the women upgrading them from mere appendages of men as wives and daughters by the judiciary.

''Any sane person, who believes in the concept of human rights, can not oppose the women rights. It is welcome that the women have finally got what have been deprived to them for years. This discriminatory clause had clogged the future of the women. Now they will have a wider choice to decide their future.

Nari Jagran Manch, a organization which was also fighting for the rights of women who get married outside the state, comes down heavily on JKDFP and Kashmir Bar Association for planning to challenge the landmark judgement.

The Manch Convenor Mrs Sneh Bali believes that it is the chauvinistic attitude of these petty people who are feeling uncomfortable by this judgement. “Many clergy men from outside J&K have been settled in Kashmir and provided the fake state subjects while the basic citizens (women) are deprived of their rights. Have they every spoken about such fake persons who have settled in Kashmir and are hand in gloves with militants?” Asks Bali who has the full support of organizations like Vishva Hindu Parishad and BJP on the issue.

Though the mainstream political parties are too conscious over the issue and have not reacted to the judgment, the fact remains that the Law certainly gave a gender colouring to the Article itself favouring men only.

THE HISTORY OF DRACONIAN STATE SUBJECT LAWS

The concept of the State Subjectship devised by the Dogra rulers has its provisions enumerated in Part III of the J&K Constitution enforced on 26 January 1957. It is based on the State notification No I-L/84 or the State Subject Laws (SSLs) promulgated by Maharaja Hari Singh on 20 April 1927 to appease those advocating the “son of the soil” theory and debar the “ non-state subjects” from acquiring any immovable property in the J&K territories or getting jobs in the state government. Since them, the state subjectship, however, remained all along a matter of vital importance to the people living in the state, The leadership at the highest level in the country preserved sufficiently this inalienable right by making adequate provisions in the Constitution of India and that of the state of Jammu and Kashmir.

Narendra Modi raked up Article 370 and Kashmiri women’s rights at his Jammu rally. What followed was a flurry of counter-claims. Riyaz Wani reports

RIYAZ WANI

2013-12-14 , Issue 50 Volume 10

Her-story Women in the state enjoy the same rights as men. Photo: AFP

At his first ever and massively attended rally in Jammu and Kashmir, which saw the participation of a significant number of Muslims, the BJP’s prime ministerial hopeful Narendra Modi asserted that Article 370 that grants special status to the state did not protect the rights of women. Citing an example, he said that unlike men, if women from J&K marry outside the state, they lose their rights as permanent residents of the state.

“If Omar [Abdullah] married outside Kashmir, his rights of being a citizen remain whereas his sister Sara [married to Congress leader Sachin Pilot] loses this right,” asked Modi. “Is this not discrimination against the women in the state?”

While he received due applause for his comment at the rally, the Gujarat chief minister was far from stating facts or asking the right questions. Women in J&K, who marry outside the state, do remain permanent residents of the state, even though there have been determined political efforts to deny them this right.

J&K Chief Minister Omar Abdullah was prompt to rebut Modi. “He [Modi] very conveniently used me and my sister as examples to illustrate a point that has no bearing on truth. Either he lies or is ill informed,” Omar tweeted after Modi’s rally. “I challenge him or any of his minions to reproduce verbatim the section of Art 370 that determines the J&K state-subject law.”

Article 370 in the Constitution grants autonomous status to J&K. It specifies that except in matters of defence, foreign affairs, finance and communication, the Centre needs the state government’s approval in applying all other laws that are otherwise applicable in the rest of the country.

J&K’s state-subject law forbids outsiders to settle and buy property in the state. But it is silent on the citizenship status of women who marry outsiders.

The J&K High Court, though while passing an order in the Prakash vs Sahani case in 1965, had ruled that women take on the domicile and nationality of their husband, thus depriving women of their rights. In 2002, the HC overturned its previous order in a different case, observing that determining nationality by marriage is an outdated practice.

The state government, then led by the PDP-Congress coalition, appealed against the order in the Supreme Court, claiming that it undermined the state’s special status under Article 370. It later withdrew the petition fearing that the SC might endorse the HC order and instead sought to settle the issue in the state legislature.

A Bill titled J&K Women’s Permanent Resident (Disqualification) Bill was moved in the J&K legislature in March 2004. A part of the Bill read: “Notwithstanding anything contrary contained in any law… a female permanent resident on her marriage with a person who is not a permanent resident shall with effect from the date of such marriage cease to be permanent resident.”

The Bill was passed in the Lower House with a voice vote and was headed to become a law with its passage in the Upper House when it attracted controversy.

While both the Congress and the BJP opposed the Bill at the national level, women’s groups too plunged into the fray. Consequently, a Bill that was endorsed by the two major parties in the state, the Jammu and Kashmir People’s Democratic Party and the National Conference, didn’t go through the Upper House. The Legislative Council Chairman Abdur Rashid Dar adjourned the session sine die without permitting vote.

Since then, there has been another attempt to pass the Bill — in 2010 — but in vain. Regardless, the J&K HC’s 2004 order that allows women from J&K to retain their permanent resident status, even after they marry non-state subjects stands. Hence Sara Abdullah is as much a permanent resident of J&K as she is an Indian citizen. It’s time Modi hired few fact-checkers in his team.

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